Burroughs v. Kent County Assessment Office

• Court: Superior Court of Delaware
• Decided: May 15, 2025
• Docket: K24C-06-003 RLG
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DANIEL A. BURROUGHS, ) ) Appellant, ) ) C.A. No.: K24A-06-003 RLG v. ) ) KENT COUNTY ) ASSESSMENT OFFICE, ) ) Appellee. )

Submitted: January 24, 2025 Decided: May 15, 20251

MEMORANDUM OPINION AND ORDER

Appeal of a Decision by the Board of Assessment Review AFFIRMED

Pro Se Appellant.

Craig Eliassen, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware. Attorney for Appellee.

GREEN-STREETT, J.

1 The transcript from the hearing in this matter was requested by the Court on January 24, 2025, the same day as oral argument, but was not received until April 8, 2025. 1 I. Introduction

A Kent County property owner appealed the assessed value of his property to

the Board of Assessment Review. After a hearing before the Board, the Board

reduced the owner’s tax assessment. The owner appealed to this Court, contending

the new tax assessment continued to overvalue his property substantially. As the

Board’s decision was supported by substantial evidence and free from legal error, its

decision is AFFIRMED.

II. Factual and Procedural Background

Appellant Daniel Burroughs appealed the tax assessment for two of his

properties located in Kent County – 104 North Bay Drive (“Property 1”) and 3003

Kitts Hummock Road (“Property 2”).2 On May 6, 2024, Mr. Burroughs, proceeding

pro se, attended a review hearing before the Kent County Board of Assessment (the

“Board”) to seek a lower assessed value on those two properties. The Board heard

testimony from Mr. Burroughs, as well as from a representative from Tyler

Technologies, the company that performed the assessment.3 Mr. Burroughs provided

the valuation of several comparable properties, and pointed out facts pertinent to his

properties that he believed justified a lower assessment.4

2 Transcript of Hearing before the Kent County Board of Assessment Review at 3 (hereinafter, “Tr. of Hearing at _”). 3 Answering Br. at 2. 4 Tr. of Hearing at 4-7. 2 Specifically, Mr. Burroughs noted a material amount of the land encompassed

by Property 1 lies within the “velocity zone,” an area of land near the beach where

Mr. Burroughs cannot build.5 Mr. Burroughs further argued that the land value of

Property 1 would be substantially lowered if anything happened to the building on

Property 1, as he would be unable to rebuild due to Property 1’s building proximity

to other properties and the narrowness of his lot.6 As to Property 2, Mr. Burroughs

explained he acquired that lot in addition to four other adjacent lots for a total of

$215,000.00 – rendering the assessed value of $105,000.00 for one lot untenably

high.7

The representative from Tyler Technologies supplied the valuations of other

comparable properties.8 Tyler Technologies also refuted some of the bases for

reducing the assessed value asserted by Mr. Burroughs.9 Tyler Technologies posited

that its assessments were valued at what the properties would command on the

market if they were sold “as is.”10 Accordingly, the assessments valued the land

5 Id. at 3. 6 Id. at 4. 7 Id. at 14. 8 Id. at 9-10. 9 Id. 10 Id. at 12.

3 higher because there were buildings located on the properties that a similarly-

situated property would be unable to build on a vacant lot today.11 Based in part on

Tyler Technologies’ agreement with some of Mr. Burroughs’s advocacy, however,

Tyler Technologies adjusted its proposed tax assessment of Property 1 from

$328,100.00 down to $303,800.00, and of Property 2 from $470,600.00 down to

$353,500.00.12 The Board unanimously adopted those proposed reassessments.13

Mr. Burroughs filed a Notice of Appeal of the Board’s decision to this Court

on June 17, 2024.14 The Board subsequently filed a Motion to Dismiss, asserting

that Mr. Burroughs filed his appeal one day past the statutory deadline.15 Less than

a week later, the Board filed a letter with the Court withdrawing its Motion to

Dismiss.16

Mr. Burroughs filed his Opening Brief on August 7, 2024.17 The Board filed

its Answering Brief on August 26, 2024.18 Mr. Burroughs filed his Reply Brief on

11 Id. 12 Id. at 2, 20-21. 13 Ex. A-A to Answering Br. 14 D.I. 1 (June 17, 2024). 15 D.I. 9 (July 25, 2024). 16 D.I. 11 (July 29, 2024). 17 D.I. 12 (Aug. 7, 2024). 18 D.I. 13 (Aug. 26, 2024). 4 September 5, 2024.19 After receiving the complete appeal packet, the Court

scheduled oral argument for the matter on November 11, 2024.20 At the Board’s

request, the Court deferred oral argument until January 24, 2025.21

During oral argument, Mr. Burroughs propounded an elaborate and thorough

presentation, utilizing extensive demonstratives and visual aids. Mr. Burroughs

highlighted several aspects of the tax assessment process that he argued were

procedurally unfair.22 He provided a rebuttal of the sales comparisons relied on by

Tyler Technologies.23 He supplied new sales comparisons that were not considered

by the Board.24 Mr. Burroughs also offered a more detailed explanation of velocity

zones and their perceived effect on property value.25

The Board noted that much of Mr. Burroughs’s presentation contained

evidence and arguments not presented to the Board at the hearing below.26 The

19 D.I. 14 (Sept. 5, 2024). 20 D.I. 16 (Oct. 16, 2024). 21 D.I. 17 (Oct. 16, 2024) (letter from the Board’s counsel requesting a later date for oral argument); D.I. 18 (Oct. 16, 2024) (the Court’s Order rescheduling the hearing). 22 Transcript of Oral Argument at 12 (hereinafter, “Tr. of OA at _”). 23 Id. at 27-29. 24 Id. at 27-30, 50-56. 25 Id. at 28-31. 26 Id. at 35.

5 Board summarized the reassessment process, and reiterated its decisional reasons for

adopting the revised assessments provided by Tyler Technologies.27 It stressed the

concept that, although a tax assessment might provide a breakdown of the individual

value of the land and any structures on the land, the total value represents a wholistic

view of the entire property.28 The Board concluded by noting that some of the

evidence presented by Mr. Burroughs might have proved persuasive had it been

introduced to the Board at its review hearing.29 As that evidence was not entered as

part of the record below, however, the Board contended, “that ship sailed.”30

III. Standard of Review

9 Del. C. § 8312(c) governs this Court’s review of the Board’s decision. This

Court reviews the Board’s decision “for errors of law, and to determine whether

substantial evidence exists to support the Board’s findings of fact and conclusions

of law.”31 Substantial evidence is “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.”32 “In reviewing the record for

27 Id. at 76-78. 28 Id. at 81. 29 Id. at 82. 30 Id. 31 New Cingular Wireless PCS v. Sussex Cnty. Bd. of Adjustment, 65 A.3d 607, 610 (Del. 2013). 32 Lorah v. Home Helpers, Inc., 21 A.3d 596 (Del. 2011) (TABLE) (citing Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 899 (Del. 1994)); see also Lively v. Dover Wipes Co., 2003 WL 21213415, at *1 (Del. Super. May 16, 2023) (quoting Onley v. Cooch, 425 A.2d 6 substantial evidence, the Court will consider the record in the light most favorable

to the party prevailing below.”33

This Court “does not independently weigh the evidence, determine questions

of credibility[,] or make its own factual findings.”34 “The decision of each board of

assessment … shall be prima facie correct[,] and the burden of proof shall be on the

appellant to show that [the Board] acted contrary to law, fraudulently, arbitrarily[,]

or capriciously.”35 “[T]he owner’s evidence must not only be competent; it must be

sufficient to show a substantial overvaluation.”36 This Court may reverse the

Board’s decision only if “the Board’s findings are clearly wrong and its conclusions

[are] not the product of an orderly and logical deductive process.”37

610, 614 (Del. 1981) (defining “substantial evidence” as “more than a scintilla but less than a preponderance[.]”)).

33 Spence v. Kent Cnty. Bd. of Assessment, 2019 WL 6483389, at *1 (Del. Super. Nov. 27, 2019) (citing Gen Motors Corp. v. Guy, 1991 WL 190491, at *3 (Del. Super. Aug. 16, 1991)). 34 Lorah, 21 A.3d at 596 (citing Johnson v. Chrysler Corp., 213 A.2d 64, 66 (Del. 1965)). 35 9 Del. C. § 8312(c).

36 Fitzsimmons v. McCorkle, 59 Del. 94, 99, 214 A.2d 334, 337 (1965).

37 Tatten Partners, L.P. v. New Castle Cnty. Bd. of Assessment Rev., 642 A.2d 1251, 1256 (Del. Super. 1993), aff’d sub nom. New Castle Cnty. v. Tatten Partners, L.P., 647 A.2d 382 (Del. 1994).

7 IV. Analysis

The statutory framework guiding this Court’s consideration of Mr.

Burroughs’s appeal limits the question before the Court to whether the Board’s

findings are clearly wrong based on the evidence presented to the Board at Mr.

Burroughs’s review hearing. Any issues not raised at or before Mr. Burroughs’s

review hearing are not properly before this Court, and thus cannot be considered as

part of this appeal. Accordingly, Mr. Burroughs’s contentions regarding the fairness

of the general tax assessment process; the timing of Kent County announcing the

applicable tax rate and Mr. Burroughs’s resulting tax burden; the fairness of the

appeal process; and the accuracy of the listed acreage of his property cannot be

addressed through this appeal.

The Court may, however, permit Mr. Burroughs – or the Board – “to present

any new or different evidence pertinent to the matter.”38 That evidence’s limited

purpose must be aimed at showing that the Board committed an error of law or failed

to rely on substantial evidence. New evidence – with the sole purpose of

undermining the evidentiary weight or credibility assessment by the Board – cannot

be used to second-guess the Board’s decision making below.

38 9 Del. C. § 8312(c).

8 During the review hearing, the Board heard evidence from Mr. Burroughs

regarding sales and listings of properties he deemed comparable. Mr. Burroughs

also testified to various deficiencies in his properties he felt were uncaptured by the

assessment, including: (1) the width of Property 1; (2) an inability to build in “the

velocity zone” between Property 1 and the beach; (3) the current state of the real

estate market; and (4) the proximity of Property 2 to nearby wetlands.39 A

representative from Tyler Technologies responded with: (1) the properties he used

as comparisons; and (2) the adjustments he deemed appropriate based on the location

and size of Mr. Burroughs’s respective properties. A member of the Board explained

that, because a structure already existed on Property 1, the owner of that property

would be free to rebuild the structure if necessary.40

The Board accepted the revised assessment values provided by Tyler

Technologies – a net decrease in the assessed value of Property 1 of $24,300.00, and

a net decrease in the assessed value of Property 2 of $118,100.00.41 The Board

explained that it found the comparison sales provided by Tyler Technologies to be

39 Tr. of Hearing at 6-15. 40 Tr. of Hearing at 12-13. 41 The original assessed value of Property 1 was $328,100.00. The original assessed value of Property 2 was $470,600.00. Tr. of Hearing at 1. The revised assessment of Property 1 is $303.800.00. The revised assessment of Property 2 is $352,500.00. Def.’s Ex. A-A at 2.

9 appropriate comparisons to the subject properties.42 Further, the Board noted the

valuation “[was] based on the value of what can be done today, or what can be sold

today.” The Board concluded that any necessary adjustments to the land value based

upon the evidence presented to it were captured in the revised assessments.43

9 Del. C. § 8312(c) requires this Court to consider the Board’s assessment

“prima facie correct.” A review of Delaware law illustrates the substantial

evidentiary burden property owners must overcome to prevail on appeal.44 Most

successful appellants either utilized the testimony of an expert witness,45 or

effectively highlighted that the Board failed to consider an essential element of the

property’s value.46 Demonstrating that the Board’s assessment substantially

overvalues the property – as required to succeed on appeal – requires showing that

the Board acted “contrary to law, fraudulently, arbitrarily, or capriciously.”47

42 Tr. of Hearing at 21. 43 Id. at 22; see also Def.’s Ex. A-A at 2.

44 Seaford Assocs., L.P. v. Bd. of Assessment Rev., 539 A.2d 1045, 1047 (Del. 1988).

45 See id.; see also Fitzsimmons, 214 A.2d at 336–37 (1965).

46 See 1313 Owner LLC v. New Castle Cnty. Off. of Fin., Assessment Div., 2020 WL 499227, at *16 (Del. Super. Jan. 30, 2020). 47 Seaford Assocs., L.P., 539 A.2d at 1047.

10 “When reviewing an agency decision, [the Court] does not weigh the

evidence, determine questions of credibility, or make its own factual findings.”48 Mr.

Burroughs’s appeal centers on the weight the Board attributed to the testimony

presented at the hearing. Although he presented evidence supporting his proposed

valuation, Tyler Technologies presented evidence rebutting that valuation. The

Board, based on its acceptance of Tyler Technologies’ revised assessment, assigned

greater weight to the testimony of Tyler Technologies. That determination does not

evidence an “arbitrary or capricious decision.”49 Rather, the record before the Court

indicates the Board engaged in an orderly and logical deductive process. The Board

considered the adjustments suggested by Mr. Burroughs, and adjusted the assessed

value how it deemed most appropriate.

This Court must defer to the Board’s factual determinations absent a showing

that such determinations are contrary to law.50 Mr. Burroughs contends the

comparable property valuations he provided “fully support [his] position.”51

48 E.I. Dupont De Nemours & Co. v. Faupel, 859 A.2d 1042, 1046 (Del. Super. 2004), aff’d sub nom. E. I. Dupont De Nemours & Co. v. Faupel, 860 A.2d 810 (Del. 2004).

49 Brandywine Innkeepers, L.L.C. v. Bd. of Assessment Rev. of New Castle Cnty., 2005 WL 1952879, at *4 (Del. Super. June 3, 2005) (defining an arbitrary or capricious decision as “willful and unreasonable and without consideration or in disregard of the facts.”). 50 Id. 51 Opening Br. at 3.

11 Statutory and decisional law, however, prevent this Court from disturbing the factual

findings of the Board solely based on a disagreement over which comparison values

the Board could have assigned greater weight or credibility.

Mr. Burrough’s detailed presentation to this Court during oral argument

contained a substantial amount of evidence not presented to the Board. The Court

agrees with the Board’s position that some of this evidence could have persuaded

the Board to lower the assessed value of Mr. Burroughs’s properties further.52 At

this stage, however, that evidence solely highlights the weight assigned by the Board

to the testimony presented to it at the review hearing.

The Court sympathizes with pro se appellants – especially one as prepared as

Mr. Burroughs – for the difficulties they may experience based on procedural

requirements that are unfamiliar to them. Evidence that might have proved

persuasive at the review hearing, but that Mr. Burroughs did not introduce at that

time, cannot be considered now by this Court to evaluate the evidentiary weight

assigned by the Board below. This Court cannot disturb the Board’s weighing of the

evidence, absent some showing that the Board acted contrary to law, fraudulently,

arbitrarily, or capriciously. No such showing has been made.

52 Tr. of OA at 81-82.

12 V. Conclusion

To successfully appeal the Board’s decision, Mr. Burroughs must present

evidence that the Board acted contrary to law, fraudulently, arbitrarily, or

capriciously. As his appeal focuses almost exclusively upon the weight the Board

assigned to the evidence presented to it, he has failed to meet the high evidentiary

burden placed upon him by statute. The Board’s decision is supported by substantial

evidence and free of legal error. Accordingly, the Board’s decision is AFFIRMED.

IT IS SO ORDERED.